Between a Rock and a Softer Place: Cartel Settlements in Australia and Canada

2019-10-29T09:01:43Z (GMT) by Roger Gamble
The concept of defendants in cartel cases making admissions, outside of immunity programs, is relatively undeveloped, except in the US. However, as the number of cartels under investigation has increased (due to the signifi cant increase in penalties and the offer of full immunity to the fi rst whistleblower to come forward and cooperate with the regulator) and the time and resources that must be deployed in a full adversarial disposition of a case makes litigation impractical in most cases, both regulators and defendants are seeking ways to expeditiously resolve disputes through settlements or leniency deals. The release of a number of important policy discussion papers and the recent adoption of a formal settlement process in the European Commission, suggest there is momentum for change. This paper discusses the risks and benefi ts of the use of such procedures and then moves to a comparison of the approaches to leniency in Canada and Australia. It is an opportune moment for such a comparison because both jurisdictions have similar legal and institutional arrangements and have recently passed similar important amendments to their cartel laws. The Canadian regulator seized the moment and embraced policies designed to encourage defendants to cooperate in exchange for leniency. In contrast, the Australian regulator passed up its chance, preferring to retain its discretion and reject the notion that it will openly cut deals. This paper argues that the ACCC should take seriously its Canadian counterpart’s response and reconsider its approach

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